The fault in our speech

The Madras High Court must be lauded for upholding the rights of writer Perumal Murugan. But for speech to be truly free, the judiciary must stop asking literature to justify its aesthetic or its intent

Where would you find Voltaire rubbing shoulders with Mahabharata, or Salman Rushdie cheek by jowl with the Ardhanareeshwara deity? This motley crowd was brought together by the Madras High Court on Tuesday in a wide-ranging judgment vindicating the free speech rights of the award-winning, and lately controversial, writer, Perumal Murugan. Mr. Murugan had become a household name last year when he publicly announced that he was giving up writing after coming under sustained attack from certain local, caste-based groups, who had protested against his novel Mathorubhagan (translated into English as One Part Woman).

Set in Mr. Murugan’s native Tiruchengode, Tamil Nadu, One Part Woman tells the story of Kali and Ponna, a married couple who are relentlessly taunted by their families and their neighbours for Ponna’s failure to bear a child. After all else fails, their last hope seems to be Ponna’s participation in the chariot festival of the god Ardhanareeshwara, which happens on the one night in the year when sexual taboos are relaxed, and consensual intercourse between strangers is permitted. Although One Part Woman was first published in 2010, it was only at the end of 2014 that the trouble started. After vociferous protests by local caste-based groups alleging that Mr. Murugan had hurt community sentiments, defamed women, and outraged religious feelings, the police got involved, and “summoned” the parties for a “peace talk”. The upshot of this talk was that the author signed an “unconditional apology” and agreed to withdraw all unsold copies of the novel. Soon after that, he published his literary obituary on his Facebook page.

Gautam BhatiaThis incident led to a series of litigations that eventually found their way to the Madras High Court. The People’s Union for Civil Liberties filed a petition asking the Court to hold that the police-mediated settlement had been coercively imposed upon Mr. Murugan, and should have no effect. Side by side, criminal complaints were filed against Mr. Murugan on the grounds of obscenity, spreading disharmony between communities, blasphemy, and defamation. Petitions were also filed asking the Court to ban One Part Woman.

In Tuesday’s judgment, the Madras High Court handed Mr. Murugan a complete victory. It invalidated the settlement, dismissed the criminal complaints, and dismissed the petition seeking a ban on the book. Within hours, the judgment was being hailed in the press and in social media as a remarkable victory for free speech. In part, this is undoubtedly true. A closer look, however, reveals cause for some circumspection. This is because in following what is now decades-old judicial reasoning in such cases, the Madras High Court ended up replicating many of the crystallised pathologies of Indian free speech jurisprudence instead of showing us a way of breaking free of them.

The heckler’s veto

Let us start, however, with what is unquestionably good about the judgment. In imposing the unequal settlement upon Mr. Murugan, the local police had cited its duty to maintain “law and order”, and had told him that this was the only way in which the protesters could be appeased. In the language of free speech, this is known as the “heckler’s veto”: by threatening public disorder or disturbance, socially powerful groups can shut down critical or inconvenient speech by simply cowing the writer as well as the police into submission. India has a long and shameful history of caving in to the heckler’s veto, a history that goes as far back as the 1920s, when the colonial government first criminalised blasphemy by enacting Section 295A into the Indian Penal Code in an attempt to placate violently feuding Hindu and Muslim groups. In 1989, however, the Supreme Court took a clear stance against such practices, stating categorically that it was the state’s constitutional duty to maintain law and order, and that it could not simply wriggle out of its responsibilities by preserving peace at the cost of allowing the heckler to veto speech.

In the intervening years, that dictum has been honoured more in the breach than in the observance. On Tuesday, however, the Madras High Court passed specific guidelines requiring the state to “… ensure proper police protection where… authors… come under attack from a section of the society.” In doing so, the Court placed itself firmly on the side of the more liberal and progressive Indian free speech tradition, and against a series of regressive judgments that have upheld book bans and censorship on the specious grounds of ‘hurt sentiments’ or ‘offended religious beliefs’.

Judicial censorship

There was something equally important, however, which the Court did not do. Under the Constitution, the judiciary is not granted the power to censor speech. Article 19(2) stipulates that the freedom of speech can be restricted only by a valid “law” — that is (subject to certain exceptions contained in Article 13 of the Constitution), a law enacted by Parliament. Once Parliament passes a law restricting speech, the judiciary may review it to check whether it passes constitutional scrutiny. In the case of banning books, for instance, this procedure is contained in Sections 95 and 96 of the Code of Criminal Procedure. Section 95 authorises the government to ban a book if it appears to have violated certain laws. If the government chooses to ban a book, the writer or publisher may then approach the High Court, arguing that the ban is an unconstitutional invasion of their right to free speech. High Courts can — and often have — struck down bans on this basis. This two-step procedure is vitally important in protecting the right to free speech, since it first requires the government to apply its mind to the question of whether a book may legitimately be banned, and then authorises the court to determine whether the government correctly applied its mind. Straightaway approaching the court for a ban short-circuits an essential safeguard, and also invites the court to step outside its jurisdiction by passing banning orders not contemplated by the Constitution. Unfortunately, this has become an increasingly common tactic in recent years, and one that has far too frequently been entertained by the Supreme Court. In the ongoing Kamlesh Vaswani case, for instance, the Supreme Court admitted — and is hearing — a petition to judicially ban pornographic websites, in the absence of any existing legislation. The Court is yet to provide a satisfactory constitutional justification for this. The Perumal Murugan judgment presented a great chance for the Madras High Court, at least, to spell out the limits of the courts’ jurisdiction, and the impermissibility of judicial censorship. It failed to do so.

The opinions of experts

What is far more troubling, however, is how the Court arrives at the conclusion that One Part Woman did not break any laws. The Court relies upon three arguments: first, that the book has won many prizes, and has gained critical acclaim; second, that Indian culture had always celebrated sexuality until the Victorian British suppressed it; and third, that read as a whole, the book is not intended to titillate or eroticise, but instead, to make a broader point about how social pressures can impact individual lives.

To each of these points, however, it is instructive to ask: so what? What if One Part Woman had been panned by the critics and lambasted as being little more than soft-core pornography? One is reminded of the long decades during which the impressionist painters were dismissed and their paintings condemned (often as pornographic), before finally entering the pantheon of great artists. Then again, what if Indian culture had always been prudish and conservative? Shouldn’t that be more of a reason for writers and artists to rebel? And what if One Part Woman had no broader social purpose, had no purpose at all, but to aestheticise the erotic?

It is perhaps unfair to blame the Madras High Court for this pattern of reasoning, since this rigid straitjacket was imposed more than 50 years ago by the Supreme Court when it upheld the ban on D.H. Lawrence’s Lady Chatterley’s Lover. In fact, Chief Justice M. Hidayatullah had argued at the time that the ban was legitimate because there was no redeeming literary or social merit to Lawrence’s writing. The fate of Lady Chatterley’s Lover (which the Madras High Court mentions at the beginning of its judgment) shows how this form of analysis is heavily judge-centric, depending almost entirely on what an individual judge feels about a controversial work. True, the reliance upon awards and reviews mitigates this to an extent, but the basic problem remains the same: the law will protect works that have successfully entered the mainstream literary culture, but it will not shield the truly iconoclastic, the seemingly senseless, the incomprehensible. It will protect Perumal Murugan, but it will do little for Gustave Flaubert in 1860, James Joyce in 1920, or Saadat Hasan Manto in 1950.

For speech to be truly free, the judiciary must stop asking literature to justify its aesthetic or its politics before the Bar, whether mediated by an awards jury or not. Until that time, individuals such as Mr. Murugan, who are lucky enough to have their cases heard by progressive judges, will triumph; but free speech will lose, and lose again.